The following is a compendium of articles and case law that may be of interest to our AG offices that are dealing with electronic discovery issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view neither as to the accuracy of the articles nor as to the position expounded by the authors of the hyperlinked articles.

Best Practices in Keyword Searching

E-discovery provider D4 has offered advice for more effective keyword searches and avoidance of false positives. A false positive occurs when a search term selects a document, but not for the intended meaning. For example, the search term “comput” would return the intended “computer” but would also return the unintended false positive “computational.”

1. A search term with less than four characters will likely result in many false positives.

2. Be wary of “noise word” terms such as those with “it” and “up.” Some software applications do not index those words, so the phrase “pick up” would not return intended results.

3. Be wary of searching numbers without any qualifiers, as searching for “1,000” will also return “1,000,000.”

4. Searching for custodians’ names will return far more hits than intended.

5. Sample documents with your proposed search terms first.

6. Be aware that if the ESI was not forensically collected, it is possible the metadata may have been obliterated, so a search for documents relative to a particular date may not return any documents.

7. Recognize your expectations, so if a 10 percent return is expected, but you get a 90 percent return, there may be issues with the search.

8. Be aware that many characters are traditionally indexed as spaces, so an email address, such as jdoe@gmail.com, would be indexed as three separate terms, with the “@” and the period considered spaces. This also applies to numbers, so 1,000 would be two separate terms, “1” and “000.”

9. When searching names, use the “w/2” proximity search between the first and last names, such as John w/2 Doe will return John Doe; Doe, John; John B. Doe and Doe, John B.

10. Use all caps for connectors, such as AND and OR, as is required by some search engines.

11. Use parentheses to separate terms or sets of terms, such as (John OR Jonathan) AND (attorney OR counsel). Use quotations to search a literal or phrase.

12. Using domain names, such as attorneygeneraloffice.gov, may be helpful in searching for potentially privileged information.

13. Be aware that on average it takes three to five iterations to finalize a set of search terms.

Listen to Case Law Under the New FRCP Amendments

E-discovery provider Kroll OnTrack recently hosted a webinar that reviewed the case law decided since the 2015 FRCP amendments became effective. The panel discussion was led by Magistrate Judge Elizabeth Preston of the U.S. District Court for the Southern District of Ohio and Tom Allman, e-discovery expert and Adjunct Professor of Law at the University of Cincinnati School of Law. The webinar focused on the treatment of amended Rule 26(b)(1) and Rule 37(e) in recent decisions. You can still listen to the webinar after providing contact information at http://www.theediscoveryblog.com.

Sedona Releases Commentary on Rules 34 & 45

The Sedona Conference released the final version of its Commentary on Rule 34 and Rule 45: Possession, Custody and Control,” which aims to provide practical, uniform and defensible guidelines for determining when a litigant or third party should be deemed to have “possession, custody or control” of information subject to discovery. The Commentary can be downloaded at no cost after entering contact information at https://www.thesedonaconference.org.

Webinar on How Automation is Changing E-Discovery Available

How Automation is Revolutionizing E-Discovery, a webinar hosted by the Association of Certified E-Discovery Specialists (ACEDS), provides an overview of e-discovery automation technologies, including technology-assisted review (TAR). The webinar also discusses the potential limitations of such technologies. The webinar is available at https://www.youtube.com/watch?v=f-Hdif4vaes.

Survey of Worldwide Encryption Products Now Available

Researchers from the Berkman Center for Internet & Society at Harvard University released a compilation of 865 hardware and software products incorporating encryption developed worldwide from 55 different countries, including 546 products developed outside the U.S. Of the non-U.S. products, 56 percent are available for sale and 44 percent are free. The compilation explains the methodology used and discusses the quality of foreign encryption products, jurisdictional agility and considerations for U.S. policymakers. The compilation may be accessed at https://www.schneier.com/academic/paperfiles/worldwide-survey-of-encryption-products.pdf.

EDRM to Develop Survey of Data Security at E-Discovery Vendors

The Electronic Discovery Reference Model (EDRM) established a new project to develop a data security survey in order to provide organizations with an overview of the critical questions to ask when assessing the data security of e-discovery vendors. The overview will include specific sections on risk management, asset security, communications and networking security and identity and access management. It will allow user organizations to determine the level of risk they may be assuming by engaging a particular vendor. It will also offer suggestions to improve security practices and enhance the services provided. The project is currently in the development stage.

More Sedona Releases: Primer on TAR

The Sedona Conference released the public comment version of its TAR Case Law Primer, a comprehensive review of court decisions addressing the use of technology-assisted review (TAR) in civil discovery. The Primer discusses more than 30 decisions from state, federal and foreign courts and administrative agencies on issues including if and when a court can compel a party to use TAR, whether parties are required to negotiate TAR methodology and the relationship between TAR and traditional methods of document culling and review. The Primer is the result of months of review and analysis by Working Group 1 members, and is designed to be used as an introduction and guide to the use of TAR in civil litigation and government investigations, without passing judgment on the efficacy of particular TAR applications or methodologies. The primer may be downloaded at https://thesedonaconference.org/publications. Comments should be sent to comments@thesedonaconference.org.

Case Law: Responding Party Can’t Be Required to Use TAR

In Hyles v. New York City, no. 10 Civ. 3119 (S.D.N.Y. August 1, 2016),the U.S. District Court for the Southern District of New York denied the plaintiff’s request, ruling that New York City could not be “forced” to use technology assisted review (TAR) when the City itself preferred to use keyword searching. Pauline Hyles brought a discrimination suit against the City, and after consulting with an e-discovery vendor, her counsel proposed that the City should use TAR as a more efficient and cost-effective method of identifying discoverable information. The City declined, for reasons of cost and for concerns that the parties would not be able to collaborate to develop the seed set for a TAR process. The dispute was referred to Magistrate Judge Andrew Peck who, while acknowledging that TAR was more efficient and effective than keyword searching, concluded that the controlling principle is Sedona Principle of Cooperation 6, which states that “responding parties are best situated to evaluate the procedures, methodologies and technologies appropriate for preserving and producing their own ESI.”

Case Law: Attorney Sanctioned for Misrepresenting E-Discovery Rules

In Fulton v. Livingston Financial, LLC, no. C15-0574JLR (W.D. Wash. July 25, 2016), the U.S. District Court for the Western District of Washington imposed sanctions on Livingston Financial’s attorney for misrepresentations of law and fact, including his citation in a motion to compel to case law analyzing superceded standards under FRCP 26(b)(1), which were substantially changed by the 2015 FRCP amendments. Finding the attorney’s reliance on outdated case law “inexcusable,” the court ordered fees and costs to the plaintiff for defending the motion and ordered the attorney to provide “senior members” of his firm with the “offending brief” and details of the court’s sanctions. Although the court declined to require the attorney to report the sanction on future pro hace vice applications, it did order that if a federal court threatened or imposed sanctions within the next five years, the attorney must immediately disclose the current sanction.

Case Law: No Cost Shifting Without Showing of Undue Burden or Expense

In Nehad v. Browder, no. 15-1386 (N.D. Cal. July 15, 2016), the U.S. District Court for the Northern District of California denied plaintiffs’ request for sanctions. The parents of a man fatally shot by a police officer filed a civil rights action against the officer and the City of San Diego, alleging excessive force, battery, negligence and wrongful death. Discovery was contentious, with 40 different requests for production and interrogatories, but the court narrowed the scope of discovery to the past three years and to investigation files for incidents in which an officer shooting resulted in injury or death. Defendants filed a motion for reconsideration, objecting to the resulting production as burdensome and requesting cost shifting. They argued it would require “thousands of hours” to review and analyze the documents, CDs and DVDs and redact them for privacy. The court noted that the standard for ordering cost shifting requires that it only be considered when ediscovery imposes an undue burden or expense, and only when the electronic data is “relatively inaccessible.” The court found that defendants had not made any showing of burden or expense and were not entitled to cost shifting.

Hedda Litwin is the Editor of E-Discovery Bulletin and may be reached at 202-326-6022. The E-Discovery Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail hlitwin@naag.org.